Highlights of Noteworthy Decisions

Decision 1561 19
04/11/2019
A. Somerville
  • Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)

The worker suffered a low back injury in February 2007, for which he was granted a 16% NEL award. In Decision No. 1378/16, the Tribunal found that the worker had entitlement for psychotraumatic disability, with an MMR date in November 2013, which was after the end of the 72-month LOE review period. The worker was entitled to full LOE benefits as of November 2013. The Board then granted a 30% rating for the psychotraumatic disability, resulting in a combined 41% NEL award.

In this decision, the Vice-Chair found that the worker was entitled to a 35% rating for psychotraumatic disability, retroactive to the MMR date in November 2013.
The Vice-Chair confirmed the Board decision to offset the worker's LOE benefits by the amount of CPP disability benefits received by the worker. The Vice-Chair distinguished Decision No. 3126/16, which found that review after 72 months to offset LOE benefits by CPP disability benefits was not allowed because the deterioration in the worker's compensable condition resulting in the NEL increase occurred before the final LOE review date. In this case, both the deterioration and determination dates for the NEL award for psychotraumatic disability occurred after the final LOE review date, thus allowing review of LOE benefits within the exceptions in s. 44(2.1) of the WSIA, and allowing offset of the LOE benefits by the amount of the CPP disability benefits.